Part 670 - Determination of Public Need for Medical Facility Establishment

Effective Date: 
Tuesday, December 22, 1998
Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Section 2801-a(10)(a)

Section 670.1 - Determination of public need pursuant to section 2801-a(3) of the Public Health Law

Section 670.1 Determination of public need pursuant to section 2801-a(3) of the Public Health Law. (a) The factors for determining public need for the establishment of medical facilities shall include, but not be limited to:

(1) the current and projected population characteristics of the service area, including relevant health status indicators and socioeconomic conditions of the population;

(2) normative criteria for age and sex specific utilization rates to correct for unnecessary utilization of medical facilities and health services;

(3) standards for facility and service utilization, comparing actual utilization to capacity, taking into consideration fluctuation of daily census for certain services, the geography of the service area, size of units, and specialized service networks;

(4) the patterns of in and out migration for specific services and patient preference or origin;

(5) the need that the population served or to be served has for the services proposed to be offered or expanded, and the extent to which all residents in the area, and in particular low income persons, racial or ethnic minorities, women, handicapped persons, and other underserved groups and the elderly, will have access to those services;

(6) in cases involving the reduction or elimination of a service, including those involving the relocation of a facility or service, the extent to which need will be met adequately and the effect of the reduction, elimination, or relocation of the service or facility on the ability of low income persons, racial and ethnic minorities, women, handicapped persons, and other underserved groups, and the elderly, to obtain needed health care;

(7) the contribution of the proposed service or facility in meeting the health needs of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services (for example, low income persons, racial and ethnic minorities, women, and handicapped persons), particularly for those whose needs are identified in the medical facilities plan. For the purpose of determining the extent to which the proposed service or facility will be accessible to such persons, the following shall be considered:

(i) the extent to which medically underserved populations currently use the applicant's services in comparison to the percentage of the population in the applicant's service area which is medically underserved, and the extent to which medically underserved populations are expected to use the proposed services if approved;

(ii) the performance of the applicant in meeting its obligations under applicable civil rights statutes prohibiting discrimination on the basis of race, color, national origin, handicap, sex, and age;

(iii) the extent to which Medicare, Medicaid and medically indigent patients are or will be served by the applicant; and

(iv) the extent to which the applicant offers a range of means by which a person will have access to its services.

(b) The evaluative procedure for review of public need pursuant to section 2801-a(3) of the Public Health Law shall include, but not be limited to: (1) description of proposal as submitted by applicant for establishment; (2) identification of use rates in the service area for the type(s) of facility(s) and service(s) involved; (3) identification of current and projected user population of the service area; (4) identification of resulting estimate of future quantitative need as projected for a period of five years from last complete calendar year reported; (5) identification of existing facility(s) and service(s), which are the same as those pro-posed by the applicant available in the service area; (6) identification of existing facility(s) and service(s), which are the same as those proposed by the applicant, which will be available to meet future need in the service area; (7) identification of facility(s) and service(s), which are the same as those proposed by the applicant and which have been approved for establishment and/or construction but are not in operation in the service area; (8) identification of resulting resource(s) available in service area five years in future to meet need; (9) identification of percent of need met for proposed facility(s) and service(s); (10) description of the current utilization for all facility(s) and service(s) which are the same as those proposed by applicant in the service area; (11) description of the current utilization for allied or alternate facilities and services in the service area; (12) description of any migration patterns for health care in the service area; (13) description of any evidence of inappropriateness of placement in the service area for the subject facility(s), service(s) and related service(s); and (14) description of the distribution of facility(s) and service(s) in relation to the popula-tion’s distribution. (c) The public need analysis for each proposal will include a determination of the appropriate service area. The factors to be considered by the Public Health Council for determining the appropriate service area shall include, but not be limited to, the substantive criteria set forth in subdivision (c) of section 709.1 of this Chapter. (d) Any application for establishment wherein a determination of public need is made pursuant to this section shall be subject to the following: (1) The Public Health Council may, during the processing of an application, propose to disapprove the application solely on the basis of a determination of public need in advance of its consideration of the other review criteria required by Public Health Law, section 2801-a(3) without, however, waiving its right to consider such other criteria at a later date. (2) In the event the Public Health Council proposes to disapprove an application on the basis of a lack of public need and the applicant requests a hearing, the Public Health Council may direct the completion of the other reviews required by Public Health Law, section 2801-a(3). The application shall then be returned to the Public Health Council to consider such reviews, the results of which may then be included as grounds for the proposed disapproval to be considered at the hearing. If the Public Health Council directs the completion of such reviews, a copy of the report containing the results of the reviews shall be mailed to the applicant at least 60 days prior to the date set for hearing. (3) In the processing of an application, the commissioner may recommend disapproval based on a review limited to a determination of public need. In the event the Public Health Council does not concur with the commissioner’s recommendation of disapproval, it shall return the application to the department at which time all other reviews required by Public Health Law, section 2801-a(3) shall be completed. At such time as all reviews are completed, the application shall be returned to the Public Health Council for action.

Effective Date: 
Tuesday, November 22, 1988
Doc Status: 
Complete

Section 670.2 - Acute care facilities

670.2 Acute care facilities. The factors and methodology to be considered by the Public Health Council for determining the public need for acute care facilities, beds and services, shall include, but not be limited to, the substantive criteria and methodology set forth in section 709.2 of this Chapter.
 

Doc Status: 
Complete

Section 670.3 - Residential health care facilities

Residential health care facilities. (a) Notwithstanding the provisions of subdivisions (a), (b) and (c) of section 670.1 of this Part, the factors, methodology and procedures to be used by the Public Health Council for determining the public need for residential health care facility beds shall include, but not be limited to, the substantive criteria, methodology and procedures set forth in section 709.3 of this Chapter and the provisions of subdivision (c) of this section.

(b) Any application for establishment wherein a determination of public need is made pursuant to this section, shall be subject to the provisions of subdivision (d) of section 670.1 of this Part.

(c)(1) In determining the need for residential health care facilities, beds and services, consideration shall be given to the needs of persons who receive or are eligible to receive medical assistance benefits at the time of admission to a facility pursuant to Title XIX of the federal Social Security Act and Title 11 of Article 5 of the State Social Services Law, hereafter referred to as Medicaid patients, and the extent to which the applicant serves or proposes to serve such persons, as reflected by factors including, but not necessarily limited to, the applicant's admissions policies and practices. An application by an applicant that is or will be a provider that participates in the medical assistance (Medicaid) program shall not be approved unless the applicant agrees to comply with the requirements of this subdivision. An applicant that, at the time of consideration of its application by the Public Health Council, proposes not to participate in the Medicaid program may be approved, provided all other review criteria have been met, upon the condition that if, in the future, it does participate in the Medicaid program, it would comply fully with the requirements of this subdivision.

(2) To ensure that the needs of Medicaid patients in an applicant's service area are met and that such patients have adequate access to appropriate residential health care facilities, beds and services, applicants shall be required to accept and admit at least a reasonable percentage of Medicaid patients as determined pursuant to this subdivision. Such reasonable percentage of Medicaid patient admissions, also referred to herein as the Medicaid patient admissions standard, shall be equal to 75 percent of the annual percentage of all residential health care facility admissions, in the long term care planning area in which the applicant facility is located, that are Medicaid patients. The calculation of such planning area percentage shall not include admissions to residential health care facilities that have an average length of stay of 30 days or less. If there are four or fewer residential health care facilities in a planning area, the applicable Medicaid patient admissions standard for such planning area shall be equal to 75 percent of the planning area annual percentage of all residential health care facility admissions that are Medicaid patients or 75 percent of the annual percentage of all residential health care facility admissions, in the health systems agency area in which the facility is located, that are Medicaid patients, whichever is less. In calculating such percentages, the department will use the most current admissions data which have been received and analyzed by the department. An applicant will be required to make appropriate adjustments in its admissions policies and practices so that the proportion of its own annual Medicaid patient admissions is at least equal to 75 percent of the planning area percentage or health systems agency area percentage, whichever is applicable.

(3) The proportion of an applicant's admissions that must be Medicaid patients, as calculated under paragraph (2) of this subdivision, may be increased or decreased based on the following factors:

(i) the number of individuals within the planning area currently awaiting placement to a residential health care facility and the proportion of total individuals awaiting such placement that are Medicaid patients, provided that patients awaiting placement include, but need not be limited to, alternate level of care patients in general hospitals;

(ii) the proportion of the facility's total patient days that are Medicaid patient days and the length of time that the facility's patients who are admitted as private paying patients remain such before becoming Medicaid eligible;

(iii) the proportion of the facility's admissions who are Medicare patients or patients whose services are paid for under provisions of the federal Veterans' Benefit Law;

(iv) the facility's patient case mix based on the intensity of care required by the facility's patients or the extent to which the facility provides services to patients with unique or specialized needs; (v) the financial impact on the facility due to an increase in Medicaid patient admissions.

(4)(i) An applicant shall submit a written plan, subject to the approval of the department, for reaching the Medicaid patient admissions standard required by this subdivision. The plan shall provide for reaching the standard within no longer than a two year period and the facility shall give preference, as necessary, to Medicaid patients in order to reach the admissions standard within the prescribed time period.

(ii) Once the Medicaid patient admissions standard is reached, the facility shall not reduce its proportion of Medicaid patient admissions so as to go below the standard unless and until the applicant, in writing, requests the approval of the department to adjust the standard and the department's written approval is obtained. In reviewing requests to adjust a facility's Medicaid patient admissions standard, the department shall consider factors which may include, but need not be limited to, those factors set forth in paragraphs (2) and (3) of this subdivision.

(iii) After a facility's initial Medicaid patient admissions standard has been reached, the department may increase such facility's Medicaid patient admissions standard, based on the criteria set forth in this subdivision, if the percentage of Medicaid patients admitted by residential health care facilities in the facility's planning area or health systems agency area, as appropriate, increases due to factors other than an increase in Medicaid patient admissions by the applicant.

(5)(i) Subject to the provisions of subparagraph (ii) of this paragraph, after the phase-in period provided for in paragraph (4) of this subdivision, a facility shall be prohibited from failing, refusing or neglecting to accept or admit a Medicaid patient for whom it is otherwise able to provide care, regardless of whether the level of reimbursement received for such patient is less than the rate the facility charges private pay patients, unless the facility has reached and is maintaining compliance with the Medicaid patient admissions standard imposed by this subdivision. Compliance with the requirements of this subdivision shall be determined on the basis of a facility's total annual admissions, so that a facility may exercise its discretion in determining when during a year it will admit a sufficient number of Medicaid patients to maintain its Medicaid patient admissions standard.

(ii) A facility may be exempt from the requirement of admitting a Medicaid patient in order to meet or maintain its Medicaid patient admissions standard if it can demonstrate in writing to the satisfaction of the commissioner that the Medicaid patient was denied admission solely in order to admit another patient who had a greater need of residential health care facility services, as determined by the intensity of care anticipated to be required by such patient, and that there was only one bed available in the facility at the time of the admission decision to accommodate a new admission. Facilities shall not be required to obtain prior department approval in order to accept a non-Medicaid patient in place of a Medicaid patient pursuant to this subparagraph, but shall maintain sufficient documentation including, but not necessarily limited to, a copy of the Patient Review Instrument for the patient admitted and the Medicaid patient denied admission in order to justify the admission decision. Copies of such documentation shall be provided to the department upon request.
 

Effective Date: 
Monday, September 18, 1989
Doc Status: 
Complete

Section 670.4 - Ambulatory surgery services

670.4 Ambulatory surgery services. The factors and methodology to be considered by the Public Health Council for determining the public need for ambulatory surgery services and facilities, shall include, but not be limited to those set forth in section 709.5 of this Chapter.
 

Effective Date: 
Wednesday, March 11, 1998
Doc Status: 
Complete

Section 670.5 - Long-term inpatient rehabilitation programs for head-injured patients

670.5 Long-term inpatient rehabilitation programs for head-injured patients. The factors and methodology to be considered by the Public Health Council for determining the public need for long-term inpatient rehabilitation program beds and services for head-injured patients shall include, but not be limited to, the substantive criteria and methodology set forth in section 709.11 of this Chapter.
 

Effective Date: 
Wednesday, November 29, 1989
Doc Status: 
Complete

Section 670.6 - End stage renal dialysis service

670.6 End stage renal dialysis service. (a) This methodology will be utilized in the evaluation of certificate of need applications involving the construction or establishment of new or replacement dialysis stations used in the treatment of End Stage Renal Disease. It is the intent of the Public Health Council that this methodology, when used in conjunction with the planning standards and criteria set forth in section 670.1 of this Part, become a statement of basic principles and planning/decision making tools for guiding and directing the development of dialysis stations for End Stage Renal Disease services throughout the state. Additionally, it is intended that the methodology will provide the health systems agencies and potential applicants with sufficient flexibility to consider the unique characteristics of their respective areas in determining need. The goals and objectives of the methodology expressed herein are expected to ensure that an adequate supply of dialysis stations are available to provide access to care to all those in need of in-facility dialysis.

(b) The factors to be considered in determining the public need for dialysis stations shall include, but not be limited to, the following:

(1) evidence that the proposed dialysis services capacity proposed will be utilized sufficiently to be financially feasible as demonstrated by a five year analysis of projected costs and revenues associated with the program;

(2) evidence that the proposed service or additional capacity will enhance access to services by patients including members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services (for example, low-income persons, racial and ethnic minorities, women and handicapped persons), and/or appropriate rural populations;

(3) evidence that the facilities hours of operation and admission policies will promote the availability of services which are acceptable to those in need of such services, in particular, operational hours that permit individuals in dialysis to continue employment;

(4) the facility's willingness and ability safely to serve dialysis patients; and

(5) evidence, derived from analysis of factors including, but not necessarily limited to, patient referral and use patterns of existing dialysis facilities and services and projected referral and use patterns of both the proposed facility, and of existing facilities or services within the applicant's planning area which would result from approval of the proposed facility, indicating that approval of the proposed facility will not jeopardize the quality of services provided at or the financial viability of such existing facilities or services. However, a finding that the proposed facility will jeopardize the financial viability of one or more existing facilities will not of itself require a recommendation of disapproval of the proposed application.

(c) Public need for a proposed facility or station shall be deemed to exist when review and consideration of evidence concerning each of the five factors set forth in subdivision (b) of this section results in an affirmative finding.
 

Effective Date: 
Wednesday, December 28, 1994
Doc Status: 
Complete